The Fair Use Massacre Continues: Now Warner’s Going After the Babies

Commentary by Corynne McSherry

First they came for the teenagers. Could toddlers be far behind? Nope. Thanks to the good folks at YouTomb, we've learned that Warner Music's automated takedown net has now caught two videos of little kids being little kids.

Of course we can't show you the videos since they're, well, censored, but the YouTomb snapshots tell most of the story. One showed a 4 year old lip-syncing to the old Foreigner hit, "Juke Box Hero." The other apparently showed a baby smacking its lips to the tune of "I Love My Lips"—a song originally sung by a cucumber in an episode of "Veggie Tales." Both videos are obvious fair uses (these are transformative, noncommercial videos that are not substitutes for the original songs, and there is no plausible market for "licensing" parents before they video their own children singing) and perfectly legal—just like the video of a baby dancing to a Prince song that Universal Music Group took down in 2007.

These are just a few of the thousands of videos Warner has instructed YouTube to block in the past few months. According to statistics kept by YouTomb, there were twice as many videos removed from YouTube in January 2009 as in the entire previous year combined. The numbers are all more appalling because, thanks to Warner's reliance on YouTube's automated, censorship-friendly Content I.D. tool, there is no reason to think that Warner even bothered to watch these videos to decide whether it actually objects them before blocking them.

We've said it before, and we'll keep saying it until the folks at Warner come to their senses: it's time to stop the censorship. The Content ID system should be set to flag possible infringing works and then Warner should have a human review those works before they are taken down.

And if Warner won't reverse course altogether, it should at least promise that no one will be sued for simply disputing a Content I.D. removal. Warner loses nothing by this: even after a user files Content I.D. dispute, Warner still has the option of using a DMCA takedown notice to target videos to which it really objects. By publicly committing to using the DMCA process, Warner will reassure fair users that they can raise the red flag without fear of finding themselves in the middle of an expensive and unexpected lawsuit.

http://www.eff.org/deeplinks/2009/03/fair-use-massacre-continues-now-warner-s-going-aft